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Supreme Court set to rule on Marc Nadon’s appointment to top bench

Justice Marc Nadon arrives with Justice Minister and Attorney General Peter MacKay to appear before a parliamentary committee following his nomination to the Supreme Court of Canada Wednesday last October. Photo: Adrian Wyld/THE CANADIAN PRESS/File

OTTAWA — Marc Nadon, Prime Minister Stephen Harper’s most recent appointee to the Supreme Court of Canada, finds out Friday whether he can actually serve as one of the country’s top justices. Here’s what you need to know.

Who is Marc Nadon?

The 64-year-old is considered an expert on maritime and transportation law. He was once a member of the Quebec bar, working for two decades as a lawyer at the Montreal firm of Fasken Martineau Walker. He spent eight years as a judge on the Federal Court, then 12 on the Federal Court of Appeal. Nadon was the lone dissenter on a three-judge Federal Court of Appeal panel that ruled the federal government should repatriate convicted terrorist Omar Khadr. He was also the Federal Court judge who rejected a request from Green Party leader Elizabeth May to take part in the leaders’ debate during the 2011 election.

Why is the Supreme Court deciding whether he can sit on the Supreme Court?

The federal government received recommendations from two former Supreme Court justices and a constitutional expert saying that Nadon’s appointment was within the law, but a Toronto lawyer contested the appointment in court, and received backing from the Quebec government. In response, the federal government asked the Supreme Court to give a legal opinion about the appointment. Nadon decided to step aside until the ruling.

What does the Supreme Court Act say?

The act requires that three of the court’s nine justices be from Quebec, and come from either the Quebec Court of Appeal or the province’s superior court, or that they be a member of the provincial bar. Nadon was never a judge in either court, and wasn’t a current member of the Quebec bar at the time of his appointment. Instead, he was a semi-retired member of the Federal Court of Appeal. The government has enacted legislation to suggest to the court that Nadon’s more than 10 years of experience as a lawyer in the province should qualify him. Quebec has argued otherwise.

What questions does the court have to answer?

There are two questions. The first is whether appointing someone who has been a lawyer in Quebec with at least 10 years of experience is a proper interpretation of the Supreme Court Act’s requirements. The second is whether Parliament can change the Supreme Court Act to allow a lawyer with 10 years of experience to be a Supreme Court justice, without having to resort to a constitutional amendment. The federal government has argued yes to both questions, while the provinces — specifically Quebec and Ontario — have argued, at least on the latter, that the government can’t do things on its own.

If the court answers yes to the first question, it has no need to answer the second because it has effectively upheld the government’s legislation.

What’s at stake politically?

The prime minister faces the potential political embarrassment that would result if his choice to the Supreme Court were rejected. However, if he wins and can appoint Nadon over the legal objections of the Quebec government, Quebec Premier Pauline Marois might try to use the ruling on the campaign trail as another example of federal meddling.